Research › Search › Judgment

J&K High Court · body

2008 DIGILAW 15 (JK)

Davinder Kumar Batra v. Ab. Razaq Malik

2008-01-30

VIRENDER SINGH

body2008
Virender Singh, J. 1. Both the petitioners after having been summoned to face trial in a complaint filed by respondent titled Abdul Razaq Malik v. Devinder Kumar Batra and another pending before the learned 3rd Munsiff 1st Class, Jammu for the offence punishable under Sections 323, 342, 504 and 506 have knocked at the door of this court through the instant petition under Section 561-A Cr.P.C for quashing of the main complaint (Annexure-D) and order (Annexure-F) vide which the process has been issued. 2. Record reveals that notice was issued to the respondent, complainant way back in May, 2004. Meanwhile, proceedings before the trial Court were also ordered to be stayed. Despite service the respondent did not put in his appearance and ultimately the instant petition was admitted vide order dated 29.8.2005. Thereafter, post admit notice was also sent to respondent and trial Court record also requisitioned. As per office noting Mr. T.S. Malik, Advocate had furnished his vakalatnama on behalf of respondent. When the instant petition was taken up on 15th Sept. 2007 for its final disposal, Mr. Malik had not caused his appearance on behalf of respondent. It was, however, adjourned for 29th Sept. 2007 on which date also the same was the position. However, while adjourning the case once again it was made clear that on the next date, the instant petition would be disposed of on merits. When this case was taken up on 17.11.2007 for its disposal, even on that date Mr. Malik had chosen not to come. I, there fore, heard Mr. Kohli, learned counsel for the petitioners and with his assistance perused the trial Court record. 3. Mr. Kohli, while giving flash back of the case submitted that both the petitioners have been falsely implicated in this case on frivolous grounds for certain ulterior motives as the respondent who had purchased a Toyota Car from the petitioners Company wanted to get some additional repairs upon which there arose a dispute with regard to some amount due from him for which Mr. Kohli relies upon Annexures-A, `B and `C respectively. He puts forth his view point on a technical ground submitting that Section 200 Cr.P.C. mandates the Magistrate to record the statement of the complainant and his witnesses upon oath and the process issued against the petitioner in the present case is on the basis of the statement of the complainant without oath. He puts forth his view point on a technical ground submitting that Section 200 Cr.P.C. mandates the Magistrate to record the statement of the complainant and his witnesses upon oath and the process issued against the petitioner in the present case is on the basis of the statement of the complainant without oath. Therefore, such type of statement cannot form the basis for issu- ance of process under section 204 Cr.P.C. In order to strengthen his case he has drawn the attention of this Court to the preliminary evidence recorded by the trial Court where the statements of the witnesses have been recorded without administering oath. 4. In support of his legal contention, Mr. Kohli has relied upon a judgment of this Court rendered in case K.L. Dhar and Others v. Muzaffar Ahmad, 2006 (II) SLJ 571 in which this court had quashed the proceedings before the Judicial Magistrate in a complaint of Sections 323, 504, 420 and 506 RPC solely on the ground that the statement of the complainant and his witnesses were not upon oath. 5. Mr. Kohli then submits that not only the complaint and summoning order deserve to be quashed on the aforesaid technical flaw, bare reading of the complaint and the evidence led by the respondent/complainant in support of his case, on the face of it appears to be false and frivolous. It would not appeal to judicial conscious at all that once petitioner No.1 (Devinder Kumar) who had earlier joined issue with the complainant with regard to the difference in rates and had called his employees also who had started beating the complainant, petitioner No.2, his wife would also come in between and start slapping on the face of the complainant. She even went to the extent of spitting on the face of the complainant as alleged. This indicates that the complainant intentionally implicated the lady also so that petitioner No. 1 succumbs to his pressure. 6. According to Mr. Kohli, incident is of 30.9.2003 and the respondent instead of making any complaint to the Police Station filed the private complaint straightway as he just wanted to harass both the petitioners for certain oblique reasons in which he ultimately succeeded also. 6. According to Mr. Kohli, incident is of 30.9.2003 and the respondent instead of making any complaint to the Police Station filed the private complaint straightway as he just wanted to harass both the petitioners for certain oblique reasons in which he ultimately succeeded also. Dwelling upon his arguments, the learned counsel further submits that despite notice being served upon respondent initially before admission and thereafter in the post admission stage also, respondent went unrepresented and this fact also indicates that his motive was to drag the petitioners only and nothing beyond that. In support of his submission, he relies upon a judgment of Honble Apex Court rendered in State of Haryana v. Bhajan Lal and Ors., 1992 Supp. (1) SCC 335. 7. On the basis of the aforesaid submissions, Mr. Kohli prays for the relief sought herein. 8. I am in agreement with the contentions advanced by Mr. Kohli. Not that in my view the present complaint calls for quashing on technical ground raised by Mr. Kohli relying upon the judgment rendered in case K.L. Dhar (supra) as the complainant and his witnesses examined before issuance of the process under Section 204 Cr.P.C did not administer oath which is evident from the trial Court record, on facts also, prima facie, the complaint appears to be frivolous warranting interference by this Court invoking its inherent jurisdiction. In my view, the case of the petitioners is squarely covered by the celebrated judgment of Apex Court rendered in Bhajan Lals case (supra) wherein their lordships have broadly categorized the cases by way of illustrations wherein inherent powers envisaged under Section 482 Cr.P.C (561-A of old Code) should be invoked. In my view, the present case falls within category (5) which reads, thus: "Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused." 9. The net result is that the impugned order of issuance of process dated 10.10.2003 (Annexure - F), the complaint (Annexure-D) and all the proceedings pending before the trial Court arising out of the main complaint are hereby quashed. The instant petition is accordingly allowed.